§ 7-208 Rate of Pay for Safe/Sick Time and Paid Prenatal Leave.
RCNY § 7-208
(a)An employer shall pay an employee for paid safe/sick or paid prenatal leave time at the employee's regular rate of pay at the time the paid safe/sick time or paid prenatal leave is taken, provided that the rate of pay shall not be less than the highest applicable rate of pay to which the employee would be entitled pursuant to section 652 of the New York State Labor Law, or any other applicable federal, state, or local law, rule, contract, or agreement.
(b)If the employee uses paid safe/sick time or paid prenatal leave during hours that would have been designated as overtime, the employer is not required to pay the overtime rate of pay. The employer may only deduct the number of hours of safe/sick time or paid prenatal leave actually used by the employee from the employee's safe/sick time accruals or bank of paid prenatal leave, respectively, regardless of whether those hours would have been classified as straight-time or overtime hours.
(c)An employee is not entitled to compensation for lost tips or gratuities, provided, however, that an employer must pay an employee whose regular rate of pay is based in whole or in part on tips or gratuities at least the highest applicable rate of pay to which the employee would be entitled pursuant to section 652 of the New York State Labor Law, or any other applicable federal, state, or local law, rule, contract, or agreement, without allowing for any tip credit or tip allowance, as provided in § 20-913(a)(1) of the Administrative Code.
(d)Unless a higher applicable rate applies pursuant to any other law, rule, regulation, contract, or agreement, when employees are paid on a commission (whether base wage plus commission or commission only), the hourly rate of pay shall be the base wage or minimum wage, whichever is greater.
(e)Unless a higher applicable rate applies pursuant to any other law, rule, regulation, contract, or agreement, when an employer pays a flat rate of pay for work performed, regardless of the number of hours actually worked, an employee's hourly rate of pay shall be based on the most recent hourly rate paid to the employee for the applicable pay period, calculated by adding together the employee's total earnings, including tips, commissions, and supplements, for the most recent work week in which no safe/sick time or other leave was taken and dividing that sum by the number of hours spent performing work during such work week or 40 hours, whichever amount of hours is less.
(f)Unless a higher applicable rate applies pursuant to any other law, rule, regulation, contract, or agreement, if an employee performs more than one job for the same employer or the employee's rate of pay fluctuates for a single job, the rate of pay shall be the rate or rates of pay that the employee would have been paid during the time the employee used the safe/sick time or paid prenatal leave.
(g)The fact that an employer pays cash in lieu of supplements to an employee does not relieve the employer of the requirements of the Earned Safe and Sick Time Act.
(h)Under no circumstance can the employer pay the employee less than the minimum wage for paid safe/sick time or paid prenatal leave. (Amended City Record 2/3/2016, eff. 3/4/2016; amended City Record 8/21/2018, eff. 9/20/2018; amended City Record 9/15/2023, eff. 10/15/2023; amended City Record 6/2/2025, eff. 7/2/2025)
